March 6, 1995
CLA-2 CO:R:C:M 957137 RFACATEGORY:CLASSIFICATIONTARIFF NO.: 8543.80.95
District Director of Customs
300 S. Ferry Street
Room 1001
Terminal Island, CA 90731RE: Protest 2720-94-100810; transponder cards; "smart cards"; monolithic integrated circuits; Heading 8542; Denial of Claim for Failure to Provide Evidence, 19 CFR 174.13(a)(6)
Dear District Director:
The following is our decision regarding Protest 2720-94-100810, which concerns the classification of transponder cards under the Harmonized Tariff Schedule of the United States (HTSUS). The subject entries were liquidated on May 13, 1994. The protest was timely filed on August 11, 1994.FACTS:
The subject merchandise is a Hughes transponder card, model 400KHZ. The protestant claims that the transponder cards are "smart cards".
The merchandise was entered under subheading 8542.19.00, HTSUS, as other monolithic integrated circuits. The entry was liquidated under subheading 8543.80.95, HTSUS, as other electrical machines and apparatus.
The subheadings under consideration are as follows:
8542.19.00: Electronic integrated circuits and microassemblies; . . . : [m]onolithic integrated circuits: [o]ther. . . .
Goods classifiable under this provision have a general, column one rate of duty of free.
8543.80.95 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; . . . : [o]ther machines and apparatus: [o]ther: [o]ther. . . . .
Goods classifiable under this provision have a general, column one rate of duty of 3.9 percent ad valorem (1994).ISSUE:
Are the transponder cards classifiable as electronic integrated circuits or as electrical machines and apparatus, having individual functions, not specified or included elsewhere under the HTSUS?LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.
Under section 514(c)(1), Tariff Act of 1930, as amended [19 U.S.C. 1514(c)(1)], a protest of a decision under subsection (a) of section 514 must set forth distinctly and specifically each decision as to which protest is made. In addition, a protest must set forth the nature of, and justification for the objection distinctly and specifically with respect to each decision. These same requirements are set forth in section 174.13(a)(6) of the Customs Regulations [19 CFR 174.13(a)(6)]. The scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. In acting on a protest, however, Customs lacks the legal authority to assume facts and arguments that are not presented and, therefore, not in the official record.
The protestant has submitted no evidence in support of the claim under subheading 8542.19.00, HTSUS, nor is there any other evidence of record from which we can independently determine the validity of the claim. Furthermore, in a letter dated February 24, 1995, the protestant has withdrawn their request for further review of the protest on the grounds that they do not have the engineering data to support their claim. Therefore, the protest must be denied based upon the requirements of 19 U.S.C. 1514(c)(1) and 19 CFR 174.13(a)(6).HOLDING:
The transponder cards are classifiable under subheading 8543.80.95, HTSUS, which provides for: "Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; . . . : [o]ther machines and apparatus: [o]ther: [o]ther. . . ." Goods classifiable under this provision have a general, column one rate of duty of 3.9 percent ad valorem.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division